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February 15, 2018

Human Rights Act, Section 10

There is a provision that makes it clear that Human Rights prevail in regulatory matters:

Void regulation

10 (1) Where, in a regulation made pursuant to an enactment, there is a reference to a characteristic referred to in clauses (h) to (v) {gender, race, disability, etc.} of subsection (1) of Section 5 that appears to restrict the rights or privileges of an individual or a class of individuals to whom the reference applies, the reference and all parts of the regulation dependent on the reference are void and of no legal effect.

This seems to relate to a principle in United Kingdom law that general words in an Act cannot violate fundamental human rights. It's a good idea that is seldom, if ever considered.

A prime example is the Building Code. There is an entire section, Schedule C, dealing with accessibility requirements. The grandfathering allowances for size, change-of-use, and age of the building contravene Section 10 of the Human Rights Act and are therefore void.

So all that made up stuff allowing buildings under 100 square meters to be forever inaccessible isn't legal!

Schedule C does, in fact, "restrict the rights or privileges of an individual or a class of individuals to whom the reference applies". The Building Code is a lengthy regulation that references people with disabilities and ends up inventing ways to discriminate against them. I don't see any ambiguity, nor do I see any awareness of Section 10, and certainly no inclination to enforce it.

Other regulations, from minimum wage to day care and education do not pass the requirements of Section 10. Any regulation allowing paratransit should be scrutinized - Access-a-Bus is a poor substitute for public transportation, and restricts such diverse rights as freedom to live in certain places, health, employment and education.

Why is this important anti-discrimination provision never considered, let alone enforced? It's a very good principle, and should be carefully observed.

I'm not sure many are aware of Section 10, but we're entitled to know why government just winks at violations.

One in One Thousand - The forgotten legacy of James McGregor Stewart

James McGregor Stewart, 1889-1955, son of a Pictou lawyer, grandson of a Cape Breton minister, was a principal of Stewart, McKelvey, the downtown Halifax law firm. In his time he was Nova Scotia’s premier corporate lawyer, and he wrote the rules for many of our most successful and long-lived companies. He was president of the Canadian Bar between the wars. He is one of fewer than 500 Canadians to be awarded the Commander of the British Empire for services to the Empire in WW II. His obituary was in the New York Times.
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